Guardianship Division Case Digest Issue 2 of 2022
The Guardianship Division Case Digest provides a summary of relevant and interesting case law of significance to the work of NCAT's Guardianship Division.
This issue feature case summaries of decisions from the Guardianship Division, NCAT Appeal Panel, and Supreme Court of New South Wales. | | NCAT Guardianship Division | WZL [2022] NSWCATGD 4 A Britton, Deputy President, Dr F Duffy, Senior Member (Professional), I Ferreira, General Member (Community) – 13 April 2022
In sum: The Tribunal made a guardianship order appointing the Public Guardian as the subject person’s guardian, and a financial management order committing the management of the subject person’s estate to the NSW Trustee and Guardian. The Tribunal found that there was no private guardian or financial manager suitable to be appointed, having regard to conflict between the family members and their inability to make decisions in the subject person’s best interests.
Facts: WZL is an 83-year-old woman who was diagnosed with dementia in 2016. In 2019, WZL executed an enduring power of attorney (EPOA) and enduring guardianship appointment (EGA) appointing her granddaughter, TQW, as her attorney and enduring guardian. In August 2020, WZL revoked those appointments and signed new EPOA and EGA instruments appointing her son, EBL as her enduring attorney and guardian. In September 2021, TQW applied to the Tribunal for guardianship and financial management orders to be made in respect of WZL, proposing that she be appointed as her grandmother’s guardian and financial manager.
Throughout the proceedings, various allegations and counter allegations were made by EBL and his son towards TQW and her mother, Ms Z. These include accusations of neglect and financial exploitation of the subject person by each family member. Although the Tribunal found that it was not necessary to determine the truth or otherwise of those allegations, the clear animosity between the family members remained relevant to the exercise of the Tribunal’s power to make a guardianship order, and its consideration of the factors under ss 14(2) and 17(1) of the Guardianship Act 1987 (NSW) (the Act).
Issues and outcome: (i) The Tribunal was satisfied that there is a need for a guardianship order as WZL is unable to make and implement decisions of significance in relation to her person. The Tribunal found that WZL’s conduct in making and revoking several EPOA and EGA instruments in quick succession suggests that she lacked an understanding of the nature and significance of those appointments, and/or was vulnerable to suggestions and pressure from others in making (and revoking) those appointments ([41]).
(ii) If a guardianship order is not made, the most recent purported appointment of EBL as WZL’s guardian will remain in place. The Tribunal considered that if EBL continues as his mother’s decision maker, in light of the animosity between the family members, WZL will be denied the ability to remain in contact with her daughter and granddaughter and they will effectively be excised from her life ([42]-[43]).
(iii) The Tribunal rejected the submission by the separate representative for WZL, that the Tribunal should not make a guardianship order because “need” is not established. Whether a guardianship order is “needed” is not a precondition to the exercise of the Tribunal’s discretion to make a guardianship order but is simply a consideration which the Tribunal may take into account in the exercise of that discretion. The Tribunal found that decisions of significance may need to be made in the foreseeable future given EZL’s age and health, for example, decisions about her care and accommodation ([44]).
(iv) The Tribunal found that neither TQW nor EBL are able to exercise the functions conferred under the guardianship order, pursuant to s 17(1)(c) of the Act. Both parties had accepted the EPOA and EGA appointments, demonstrating a lack of judgement in relation to whether or not WZL had the capacity to execute those instruments ([57]). Section 4(f) of the Act requires that a guardian must observe the principle of the “importance of preserving the family relationships”. Neither TQW nor EBL demonstrated that they were able to make objective decisions about WZL’s access to her family members ([60]). For example, EBL stated that he would not permit his mother to have contact with her daughter and granddaughter, nor seek their views and keep them informed about any matters related to WZL ([61]).
(v) The Tribunal was satisfied that a financial management order should be made to protect WZL from neglect, abuse, and exploitation. However, it was not satisfied that either TQW or EBL were suitable to act as WZL’s financial manager as each believes that the other has misappropriated funds from WZL and flagged their intent to commence proceedings to recover that money. The Tribunal considered that an independent decision-maker is best placed to evaluate whether any action should be commenced in WZL’s name in relation to those allegations. Therefore, the Tribunal committed the management of WZL’s estate to the NSW Trustee and Guardian ([70]-[71]). | CKJ [2022] NSWCATGD 16 D Jay, Senior Member (Legal), C M Kennedy, Senior Member (Professional) S Fogg, General Member (Community) – 6 September 2022
In sum: Section 25G of the Guardianship Act 1987 (NSW) provides that the Tribunal may make a financial management order in respect of a person only if it is satisfied that the person is not capable of managing his or her affairs, there is a need for another person to manage those affairs on the person’s behalf, and it is in the person’s best interests that the order is made. The Tribunal dismissed applications for a financial management order and review of an enduring power of attorney, on the basis that the presumption of capacity had not been displaced.
Facts: CKJ is 87 years old. She has two children, DTD and FZN. In 1987, she executed an Enduring Power of Attorney (EPOA) appointing DTD as her attorney. She revoked that appointment in June 2022 and executed a new EPOA (2022 EPOA) appointing FZN as her attorney. DTD made an application to the Tribunal for a financial management order, and an application seeking to review the 2022 EPOA. At the time the applications were made, CKJ was in the process of selling her home. DTD expressed concern that CKJ was at risk of dissipating the proceeds of sale with an adverse impact on future living and care options. DTD also expressed concern about the allegedly adverse involvement of FZN in CKJ’s financial affairs.
Issues and outcome: (i) The threshold question for the Tribunal was whether CKJ is incapable of managing her financial affairs. The test for determining a person’s capability to manage his or her affairs is described by Lindsay J in P v NSW Trustee and Guardian [2015] NSWSC 579 at [308]:
“[W]hether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.”
(ii) The Tribunal took evidence from CKJ alone at the commencement of the hearing and provided a summary to the other participants, to ensure that her evidence was not affected by perceived pressure or influence of other persons involved in the hearing. The Tribunal found CKJ’s evidence to be measured, detailed, accurate and responsive to all questions put to her ([8],[11]). In short, CKJ stated that she does not believe she needs a financial manager. She recently sold her home and used the proceeds to buy a property in another suburb that she feels is more suitable to her needs. She has no debts, pays her bills by cheque, and is mindful of how she spends her money. CKJ chose FZN to be her attorney under the 2022 EPOA because she believes he is reliable. She does not feel pressured for money by her children and would decline if they asked her for an “early inheritance” ([10](1)-(11)).
(iii) The Tribunal dismissed the financial management application as it formed the view that CKJ is capable of managing her financial affairs. She has a competent understanding of her finances, is aware of her assets, appreciates the need to pay her debts as and when they fall due and, although would like to spend money on discretionary items (like a pet dog and second-hand car), is mindful that discretionary purchases must be sensible and within her means. The Tribunal also stated that it would be erroneous to make a financial management order to settle a dispute between CKJ’s children ([23]-[24]).
(iv) The Tribunal decided not to carry out a review of the 2022 EPOA and dismissed the application. In circumstances where FZN has made no decisions under the 2022 EPOA the Tribunal could not be satisfied that he is not suitable to act in the role at some time in the future, if CKJ loses capacity. At present, CKJ makes all decisions for herself, and she is competent to revoke the instrument and to make a fresh instrument if she chooses to do so ([38]-[39]). | SKF [2022] NSWCATGD 14 B L Adamovich, Senior Member (Legal), Dr M J Wroth, Senior Member (Professional), L Porter, General Member (Community) – 22 July 2022
In sum: The Tribunal made a guardianship order with the authority for the guardian to provide or withhold consent to the use of the restrictive practice of chemical restraint, finding that the subject person was being prescribed medication to manage behaviours rather than to treat diagnosed conditions. Other functions included in the order were health care, services and medical and dental consent.
Facts: SKF is a 69-year-old man who is a permanent resident at an aged care facility. He was diagnosed with Fragile X syndrome and is a participant in the National Disability Insurance Scheme (NDIS). SKF has a moderately severe cognitive impairment, and, as a result is unable to make important life decisions. The Tribunal received a guardianship application from SKF’s brother, NZF, who was seeking to be appointed as guardian to make decisions about consent to medical treatment. Medical reports indicate that SKF has been prescribed Olanzapine for the purpose of schizophrenia, despite schizophrenia not being a diagnosed condition. SKF has also been prescribed with routine sodium valproate to treat ‘agitation’, and Lorazepam on a PRN basis. NZF stated that he has been given consent forms but has not had an opportunity to discuss the treatment with SKF’s GP.
Issues and outcome: (i) Under Part 5 of the Guardianship Act, a person who is unable to provide their own consent to major treatment can only receive major treatment with the consent of a guardian, a person responsible or directly from the Tribunal. The only exception is where that treatment is necessary, as a matter of urgency, to save the patient’s life, to prevent serious damage to the patient’s health, or to prevent the patient suffering significant pain and distress (Guardianship Act s 37(1)). The Tribunal found that the prescription of major medications over an extended period of time does not fall within that exception ([29]-[30]).
(ii) Section 40 of the Guardianship Act sets out the information to be contained in a request for consent to treatment from a guardian or a person responsible. NZF contended that he had not been provided with information with respect to the purpose of treatment, the particular condition of the patient that requires treatment, the alternative courses of treatment, the general nature and significant risks (if any) associated with each of those courses of treatment, and the reasons for which it is proposed the treatment should be carried out. As NZF had not been given the opportunity to give informed consent to the treatment as a person responsible, as SKF’s prescribing doctor had not consulted with NZF, the Tribunal found that there is a need for a guardian to be appointed with the function of consent to medical and dental treatment ([31]-[33]).
(iii) Chemical restraint is a type of restrictive practice where medication is used for the primary purpose of influencing a person’s behaviour, and not for treatment of a diagnosed mental disorder, physical illness or physical condition. The Tribunal was satisfied that a guardian should also be appointed with the function of chemical restraint as sodium valproate and Olanzapine were prescribed to SKF to influence his behaviours, rather than to treat diagnosed conditions ([35]-[36]).
(iv) As SKF is an NDIS participant, the Tribunal was satisfied that a services function should be attached to the order, so that the guardian could make decisions about the services that SKF receives, particularly in relation to behaviour support. The Tribunal noted that whilst the aged care facility stated that a behaviour support plan is in place, that plan was not provided to the Tribunal, and SKF submitted that he has not seen or had any input into such a plan ([38]).
(v) The Tribunal was satisfied that NZF should be appointed as SKF’s guardian, having regard to the requirements for private guardians under s 17(1) of the Guardianship Act, and the general principles under s 4 of that Act. SKF was also strongly in favour of his brother being appointed as his guardian. | EYL [2022] NSWCATGD 8 B L Adamovich, Senior Member (Legal), M J Staples, Senior Member (Professional), A Healy, General Member (Community) – 20 June 2022
In sum: The Tribunal heard applications for review of an enduring power of attorney (EPOA) and an enduring guardianship appointment (EGA) and decided to treat the applications as applications for guardianship and financial management orders, finding that it was in the subject person’s best interests for those orders to be made.
Facts: EYL is a 92-year-old woman with Alzheimer’s dementia and cognitive impairments. EYL made several EGA and EPOA appointments:
On 24 August 2007 EYL appointed her son, DEL, as her attorney under an EPOA. On 13 August 2021 EYL revoked the 2007 instrument and made a new EPOA appointing her granddaughter, USD, as her attorney. On 18 September 2021 EYL appointed her daughter, DZD, as her enduring guardian under an EGA.
The Tribunal received applications to review the EPOA (dated 13 August 2021) and EGA (dated 18 September 2021), and applications for a guardianship order and a financial management order. The four applications were heard together.
At the time the applications were made, EYL was a patient at a public hospital, with health care professionals recommending her placement into an aged care facility. For many years, EYL lived in a property with her daughter, Ms Y, who passed away in June 2021. The property is owned by EYL and Ms Y as tenants in common in equal shares. DEL is the primary beneficiary of Ms Y’s will, which made no provision for EYL. In February 2022, arrangements were made with a real estate agency for the sale of the property.
Over the course of the proceedings, the Tribunal noted the lack of trust and inability to communicate between DEL on the one hand and DZD and USD on the other. The Tribunal noted that EYL is extremely changeable in her views about who she trusted to look after her money and make decisions about where she lives.
Issues and outcome: (i) DEL requested a review of the making of the 2021 EPOA alleging that the instrument was signed under undue influence. The Tribunal reviewed the operation and effect of the EPOA dated 13 August 2021. Given the changes in EYL’s long-standing appointments and her advanced age, the Tribunal decided to treat the application for review of the EPOA as an application for a financial management order (s 36 of the Powers of Attorney Act 2003 (NSW). The making of a financial management order has the effect of suspending any EPOA for the duration of the order (Powers of Attorney Act s 50(3)) ([34],[35],[38]).
(ii) The Tribunal was satisfied that as a result of cognitive impairment, EYL is incapable of managing her own affairs ([53]). The Tribunal decided to make a financial management order as there is a need for decisions to be made in relation to the sale of the property and the funding for EYL’s placement in an aged care facility. USD proposed that she be appointed as the private financial manager. Whilst the other family members were strongly opposed to this proposal, the Tribunal found that USD was suitable to be appointed as a private financial manager noting her experience in the finance industry, the absence of a conflict of interest, and USD’s commitment to protecting her grandmother from exploitation ([68]-[[70]).
(iii) The Tribunal exercised its discretion to treat the application for review of the EGA as an application for a guardianship order. It found that there is a clear need for decisions to be made about whom EYL should have access to and the conditions of such access. The Tribunal found that the evidence demonstrated that DZD and DEL are not capable of communicating with each other to enable EYL to have free access to people she wants to see ([83]). A guardianship order is required as an enduring guardian has no authority to make decisions about access ([86]). In addition, the Tribunal found that due to the high level of distrust amongst EYL’s family members, they would not be able to communicate with each other to make decisions objectively about where EYL should live, her medical and dental treatment, and the health care and services that she receives ([90]).
(iv) The Tribunal made a guardianship order for a period of 12 months with the functions of access, accommodation, medical and dental treatment and healthcare. All the participants at the hearing agreed that an independent guardian was needed. As there was no private person who could be appointed, the Public Guardian was appointed as the guardian for EYL ([98]-[100]). | LCQ [2022] NSWCATGD 10 S Pinto, Senior Member (Legal), A M Matheson, Senior Member (Professional), B R Epstein-Frisch AM, General Member (Community) – 30 March 2022
In sum: The Tribunal carried out a review of the operation and effect of an Enduring Power of Attorney (EPOA) and decided to exercise its power under s 36(4)(b) of the Powers of Attorney Act 2003 (NSW) (POA Act) to remove the appointment of one of the attorneys, finding that the joint appointment was unworkable.
Facts: The principal (LCQ) is an 82-year-old man with dementia. Prior to his diagnosis, he appointed his two daughters KQZ and QAY as his joint attorneys under an EPOA.
KQZ brought an application to the Tribunal for review of the EPOA on the basis that QAY had mismanaged their father’s funds and had benefitted from her position in breach of her obligations as an attorney. Amongst the numerous allegations made about QAY’s conduct, KQZ alleged that QAY retained sole access and control over their father’s bank accounts in Malaysia and Singapore and refused to repatriate this money. The allegations were disputed by QAY. It was apparent that there were considerable difficulties in communication between the joint attorneys as a result of ongoing conflict.
Issues and outcome: (i) When the Tribunal reviews the operation and effect of an EPOA under the POA Act, it may make any order set out in paragraphs (a)-(g) of s 36(4), including an order removing a person from office as an attorney (s 36(4)(b)).
(ii) An attorney is in a fiduciary relationship with the person whose affairs they manage. An attorney must act in the best interests of the principal and must not obtain a personal benefit, other than specifically provided in the executed EPOA (POA Act, s 12(1)). The Tribunal found that the evidence does not indicate QAY’s deliberate or devious misappropriation of her father’s funds for her own benefit. However, her actions indicate that she has often not abided by her obligations as a joint attorney by at times acting unilaterally without consulting the joint attorney in relation to numerous decisions. Her decision to not repatriate her father’s money from Malaysia and Singapore is not in accordance with her obligation as an attorney to act only in her father’s best interests ([54]).
(iii) The Tribunal accepted that there is a continued need for the ongoing management of the principal’s affairs. However, the EPOA is unworkable due to the breakdown of the relationship between the jointly appointed attorneys ([46]). It found that KQZ, a chartered accountant, was the most appropriate person to remain in the position as attorney as there was no evidence that she has acted inappropriately in her role ([56]).
(iv) An order by the Tribunal removing an attorney has the same effect as if it was done in “due form by the principal, and the principal were of full capacity and were to the extent necessary, authorised to do the thing in question by the instrument creating the power” (s 36(10) of the POA Act). The effect of the removal of QAY is that KQZ remained as the sole attorney for her father ([59]). | NKH [2022] NSWCATGD 12 R H Booby, Senior Member (Legal), Dr B McPhee, Senior Member (Professional), F N Given, General Member (Community) – 3 March 2022
In sum: The Tribunal dismissed an application for “special medical treatment”, finding that the use of antipsychotic medication to treat psychosis does not meet the definition of special medical treatment under the Guardianship Act 1987 (NSW), and does not require the consent of the Tribunal.
Facts: The subject person (NKH) is 70 years old and lives in an aged care facility. In January 2021 the Tribunal consented to special medical treatment for NKH for the administration of Clozapine for six months. The Tribunal also made a guardianship order appointing NKH’s wife and son as his guardians for one year, to make decisions about NKH’s accommodation, services, health care and medical/dental treatment. The guardians were authorised to make decisions about NKH’s special medical treatment being the administration of Clozapine. Following the guardianship order, NKH was prescribed Clozapine with consent provided by his guardians. In January 2022 the Tribunal adjourned the end of term review of the guardianship order, noting that no application for the continuation of medical treatment was received. The effect of the adjournment was that the original order is taken to be extended until the completion of the review, allowing the guardians to continue to consent to ongoing treatment for NKH (Guardianship Act s 25(6)).
In February 2022, the Tribunal received an application from the manager of the aged care facility seeking consent to the administration of Clozapine at 50mg daily for NKH. The application was heard together with the end of term review of the guardianship order.
Issues and outcome: (i) Section 33 of the Guardianship Act provides that special medical treatment includes any treatment that has not yet gained the support of a substantial number of medical practitioners specialising in the area of practice concerned ([15]). This includes psychotropic medications when dosage levels, combinations or numbers of drugs or duration of treatment are outside accepted use to treat the patient’s condition. When the Tribunal made the guardianship order in January 2021 it was satisfied that the use of Clozapine for NKH constituted special medical treatment because NKH was diagnosed with Parkinson’s disease and Lewy Body dementia for which Clozapine was not a commonly accepted treatment ([16]).
(ii) The Tribunal received a medical assessment record for NKH which indicates that he was diagnosed with psychosis and a number of other physical conditions. In addition, NKH’s psychiatrist stated that NKH has previously been housed in the mental health unit and that he is experiencing hallucinations as symptoms of a psychosis. It was submitted that Clozapine is an accepted treatment for hallucinations resulting from a psychotic disorder and is not a treatment that is not accepted by specialist medical practitioners to treat the condition ([17]-[19]).
(iii) The Tribunal was satisfied that NKH is being prescribed Clozapine as accepted medication for a psychotic illness and that it is not special medical treatment. The use of antipsychotic medication to treat psychosis, is ‘major medical treatment’ as defined under the Guardianship Act (s 33(1)) and the Guardianship Regulation 2016 (NSW) (cl 10). There is no need for the Tribunal to consent to major medical treatment if substitute consent can be given by a ‘person responsible’. Therefore, the Tribunal dismissed the application for special medical treatment.
(iv) The Tribunal also decided that the guardianship order should be allowed to lapse. The Tribunal found that as NKH is now permanently accommodated in an aged care facility, and NKH’s wife and son are able to consent to medical treatment as his ‘persons responsible’ there is no need for a guardianship order because there are no other decisions that need to be made by a guardian ([30]-[32]). | | ZYI v Public Guardian [2022] NSWCATAP 286 I R Coleman SC ADCJ, Principal Member, C Fougere, Principal Member, M Oxenham, General Member – 5 September 2022
In Sum: The Appeal Panel ordered an appeal by way of a new hearing despite there being no error of law in the decision of the Guardianship Division being appealed, because the circumstances of the subject person had changed.
Facts: The appellant is the daughter of ZYI (the subject person). At the time the guardianship application was made, the subject person was an inpatient at a public hospital, receiving treatment for behaviours of concern resulting from dementia. The Tribunal made a guardianship order appointing the appellant and the Public Guardian separately as the guardians of the subject person. The Tribunal found that the appellant was not able to make objective decisions as to her mother’s accommodation needs in her mother’s best interests, as her only concern was about when her mother would be discharged home. Therefore, the Tribunal gave the Public Guardian the function of making decisions about accommodation and authorising others to implement accommodation decisions, with the appellant given the remaining functions under the guardianship order. Shortly after the guardianship order was made, the Public Guardian consented to the subject person’s discharge from the hospital to her home, in the care of the appellant, after her health had improved.
In her appeal grounds, the appellant did not identify any potential errors of law in the Tribunal’s decision but instead focussed on her dissatisfaction with the appointment of the Public Guardian as the guardian in relation to accommodation decisions for her mother.
Held (ordering an appeal by way of new hearing): (i) There was no error of law in the Tribunal’s decision, which correctly applied the statutory criteria in s 17(1) of the Guardianship Act 1987 (NSW) when determining the suitability of the appellant to be appointed as the subject person’s guardian. The Tribunal set out in detail why it found that the appellant was not suitable to be appointed in relation to accommodation decisions, but otherwise met the requirements in relation to the other functions contained in the order ([35]-[36]).
(ii) It is not necessary to find that the Tribunal below has made an error law before exercising the discretion to deal with the appeal by way of a new hearing under s 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). However, the Appeal Panel must decide whether there are compelling reasons to warrant the exercise of the discretion ([38]). The change in circumstance, namely the subject person’s discharge back to her home, was directly relevant to the issues raised in the appellant’s grounds of appeal, albeit that those grounds did not establish any error of law ([39]).
The Appeal Panel considered that if the appeal was dismissed, the appellant would be entitled to request a review of the guardianship order pursuant to s 25B of the Guardianship Act, essentially seeking the same outcome as in the present appeal, namely the removal of the Public Guardian as a decision maker for the subject person ([39]). The decision to exercise the discretion to deal with the appeal by way of a new hearing gives paramountcy to the subject person’s welfare and interests in enabling the timely resolution of the issues (s 4 of the Guardianship Act) and promotes the “just, quick and cheap resolution of the real issues in the proceedings” (s 36 of the NCAT Act) ([40]).
(iii) The Appeal Panel did not hold the new hearing at the same time as the appeal hearing as the only participant was the legal representative for the appellant. The Appeal Panel adjourned the appeal proceedings to allow the parties to file and serve any additional evidence and submissions ([41]). | ZWQ v ZWS [2022] NSWCATAP 277 A Britton, Deputy President, C Fougere, Principal Member, I Beale, Senior Member – 23 August 2022
In sum: Section 35(3) of the Powers of Attorney Act 2003 (NSW) (POA Act) and s 44(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), gives the Tribunal discretion to join a person as a party to proceedings if the Tribunal is of the opinion that the person should be a party, whether because of the person’s concern for the welfare of the subject person or for any other reason.
The appellant appealed against the Tribunal’s decision to refuse leave for him to be joined as a party to proceedings seeking review of the revocation of an enduring power of attorney (EPOA). The Appeal Panel dismissed the appeal, finding that concern for the welfare of the principal does not of itself require the Tribunal to exercise its discretion to join a person as a party.
Facts: The Principal is 80 years old and has been diagnosed with dementia. In July 2020 she appointed her two sons as her joint attorneys under an EPOA. In November 2020 she purportedly revoked the EPOA. In August 2021 one of her sons, ZWS, applied to the Tribunal for review of the revocation of the EPOA (the Revocation proceedings). The appellant is the husband of the Principal. As he was not a party to the revocation proceedings brought by ZWS, he made an application to be joined to those proceedings. The Tribunal refused the application for the appellant to be joined as a party (the Joinder decision).
The appellant made an application to the Tribunal for review of the making of the EPOA. That application was heard concurrently with the Revocation proceedings. At the end of the hearing, the Tribunal made a financial management order committing the management of the principal’s estate to the NSW Trustee and Guardian.
The appellant lodged an appeal against both the Joinder decision and the decision to make a financial management order and to commit the Principal’s estate to the management of the NSW Trustee. He submitted that as he had a genuine concern for the welfare of his wife, the Tribunal was required to consider whether the discretion to join him as a party should be exercised. Instead, the Tribunal had focused on the “principal reason” he gave for applying to be joined, which was irrelevant to the question posed by s 35(3) of the POA Act. The appellant also contended that the Tribunal made an “irrational” finding that “his interests will not be affected by the outcome” of the Revocation proceedings, and that the Tribunal failed to have regard to the views of the Principal.
Held (dismissing the appeal): (i) The Tribunal considered the several reasons put forward by the appellant in support of the Joinder application. Whilst it accepted that the applicant had genuine concern for the welfare of his wife, concern for the principal of itself, does not lead to the conclusion that the person should be joined as a party. The Tribunal found that the principal reason the appellant sought to be joined as a party to those proceedings was because he wanted “the right to appeal any decision made by the Tribunal”. It was open to the Tribunal to make that finding on the available material ([36]-[40],[44]).
(ii) There was no error in the Tribunal’s decision not to exercise the discretion to join the appellant as a party. The use of the word “may” in s 35(3) of the POA Act – “a review tribunal may…on the application of an interested person, decide to join, as a party to any proceedings…” makes plain that the Tribunal is not obliged to exercise that discretion, even if satisfied that the person has a “genuine concern for the welfare of the principal” ([46]).
(iii) The appellant’s contention that the Tribunal had based its decision solely on the “principal reason” was rejected. The Tribunal’s reasons indicate that the Tribunal had identified several factors which weighed against the exercise of that discretion, and the Tribunal’s balancing of factors for and against the exercise of that discretion, was permitted by s 35(3) of the POA Act and entirely orthodox ([44],[47]).
(iv) The appellant’s contention that the Tribunal had made an “irrational finding” was rejected. The Appeal Panel accepted the proposition that a party whose interests are affected by a decision would usually be a proper party to the proceedings in which that decision was made (Commissioner of Police, NSW Police Force v Fine [2014] NSWCA 327 at [41]) (see s 44(1) of the NCAT Act). However, the appellant’s contention that he had an interest in the Revocation proceedings because he held joint assets with his wife, was not put to the Tribunal in the proceedings below. In addition, it was not put to the Tribunal or to the Appeal Panel, how as a consequence of being a husband of, and holding joint assets with, the Principal, his interests might be affected by the outcome of those proceedings. Therefore, it was open for the Tribunal to find that the appellant did not have an interest in those proceedings ([52]-[54]).
(v) The appellant contended that the Tribunal was required, but failed, to have regard to the views of the Principal when exercising its functions under the POA Act. He also contended that there was no evidentiary basis for the Tribunal’s finding that the Principal lacked capacity to express a view about the joinder application. In contrast to s 4 of the Guardianship Act 1987 (NSW), the POA Act does not expressly require the Tribunal to have regard to the views of the Principal when exercising its functions under that Act. Nonetheless, even proceeding on the basis that the Tribunal was required to have regard to the Principal’s views on the joinder question, the appellant’s contention about the Tribunal’s findings was misconceived and taken out of context (see [57]-[60]). | ZXH v ZXI [2022] NSWCATAP 269 A Britton, Deputy President, I Coleman SC ACDJ, Principal Member, L Stewart, General Member – 17 August 2022
In sum: The appellant brought an appeal against the decision of the Tribunal to appoint the Public Guardian and the NSW Trustee and Guardian (the Trustee) under a guardianship order and a financial management order, instead of appointing the subject person’s family members. The Appeal Panel dismissed the appeal, finding that there was no error of law and no issue of general principle or public importance that would warrant granting leave to appeal.
Facts: The subject person is an 85-year-old woman who has been diagnosed with dementia. She lives with one of her two sons (the Resident Son). The appellant is the nephew of the subject person. In September 2021 a guardianship order was made, appointing the Resident Son, the appellant, and the subject person’s other son (the Son) to act jointly as the subject person’s guardian. In October 2021 the subject person was admitted to a public hospital following allegations made by the appellant and the Son that the subject person had been subjected to “long-term neglect” by the Resident Son. In November 2021, on application by the hospital, the Tribunal varied the guardianship order and appointed the Public Guardian as the subject person’s guardian. The Tribunal also made a financial management order and committed the management of the subject person’s estate to the Trustee.
The appellant raised several appeal grounds alleging that the Tribunal had fallen into legal error. The appellant contended that there was “no evidence” for the Tribunal’s findings about the “entrenched animosity” within the family. He also contended that the Tribunal misapplied ss 17 and 15(3) of the Guardianship Act 1987 (NSW), failed to give adequate reasons for its decision not to appoint the appellant and/or the Son as the subject person’s guardian, and failed to observe the principles in s 4 of the Guardianship Act in deciding to commit the management of the subject person’s estate to the Trustee.
Held (dismissing the appeal): (i) Under s 15(3) of the Guardianship Act, the Tribunal must not appoint the Public Guardian where another person can be appointed as the guardian. The primary reason given by the Tribunal for deciding not to appoint the appellant (and the other proposed guardians) was because it was not satisfied that any of the proposed guardians were “capable of making decisions in the subject person’s best interests in accordance with the principles set out in s 4 of the Guardianship Act”. The finding that there was “entrenched animosity within the family” was made in the context of explaining why the Tribunal found that none of the guardians were suitable to be appointed ([34]). The contention that there was “no evidence” for this finding was rejected ([37]).
(ii) Section 17(1) of the Guardianship Act should not be read as requiring the Tribunal to appoint a private guardian where that person does not satisfy the statutory criteria for appointment. The Tribunal found that none of the proposed guardians satisfied the criteria under s 17(1), particularly the ability to “exercise the functions conferred…by the proposed guardianship order”: s 17(1)(c). As the proposed guardians did not satisfy the statutory criteria for appointment, it was not open to the Tribunal to appoint any as guardian ([43]-[46]).
(iii) The Tribunal is required to give written reasons for its decision: Civil and Administrative Tribunal Act 2013 (NSW), Sch 6 cl 11. Section 62(3) of that Act sets out “certain minimum characteristics that a Tribunal’s reasons must possess” (New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231, per Bell P at [70]-[72]). Read fairly and as a whole, the Reasons disclose the reasoning path which led the Tribunal to conclude that it was not satisfied any of the proposed guardians satisfied the second limb of s 17(1)(c) of the Act, and the central findings on which that conclusion were based ([55]).
(iv) The Tribunal does not need to be satisfied that there is no “suitable person” to undertake the role of manager before exercising the discretion to appoint the Trustee as the manager ([60]). Nevertheless, read together with the Tribunal’s obligations under s 4 of the Guardianship Act, s 25M of the Act will generally require the Tribunal to decide whether one or more of the proposed managers are suitable people to manage the person’s estate and if so, having regard to the section 4 principles, whether that person or the Trustee should be appointed ([61]).The Tribunal found that there was a risk that each of the proposed guardians might use their position to undermine or interfere with decisions made by the Public Guardian by withholding funding for those decisions they opposed. It was open to the Tribunal to decide that the welfare and interests of the subject person would be best served if decisions made by the Public Guardian were not thwarted by a manager who disagreed with those decisions ([65]-[66]). | ZXO v Public Guardian [2022] NSWCATAP 260 A Britton, Deputy President, I Coleman SC ACDJ, Principal Member, S Taylor, Senior Member – 05 August 2022
In sum: The Appeal Panel dismissed an appeal against the Tribunal’s decision to appoint the Public Guardian as the subject person’s guardian, finding that there was no error of law in the Tribunal’s consideration of the factors in s 14(2) and s 17(1) of the Guardianship Act 1987 (NSW) (the Act).
Facts: The subject person is an 81-year-old woman. She was left with a significant brain injury after a stroke and is bed ridden, unable to communicate, and fed by a percutaneous endoscopic gastronomy tube (PEG tube). In March 2021 an application was made to the Tribunal for a guardianship order after the subject person needed her PEG tube replaced due to a blockage. Throughout the proceedings, the subject person’s spouse (the appellant) and her siblings proffered differing views about whether her life should be sustained, with the appellant favouring the replacement of the PEG tube, and the continuance of medical treatment, and the siblings favouring palliative care.
The Tribunal was not satisfied that the appellant or the siblings were able to exercise the functions conferred under the guardianship order as required by s 17(1)(c) of the Act and made a guardianship order appointing the Public Guardian for 6 months with health care and medical and dental consent functions. In September 2021 that order was renewed for a further two years.
The appellant brought an appeal against the review decision arguing that the guardianship order should lapse, or in the alternative, that he should be appointed as guardian. The appellant listed 23 grounds of appeal, few of which gave rise to a question of law. Amongst those grounds, the appellant contended that in making the guardianship order, the Tribunal failed to have regard to the mandatory considerations set out in s 14(2) of the Act. These include the views of the subject person (s 14(2)(a)(i)), the views of the person’s spouse and/or carer (ss 14(2)(a)(ii) and 14(2)(a)(iii)) and the practicability of services being provided to the subject person without the need for the making of an order (s 14(2)(d)).
Held (dismissing the appeal): (i) The Appeal Panel considered the proper interpretation of s 14(2). The use of the expression “the views (if any)” in s 14(2)(a)(i) of the Guardianship Act, indicates that it is contemplated that there may be circumstances where the person has not expressed a relevant view ([43](3)). The subject person did not participate in the hearing and was unable to communicate because of her disability. In explaining its decision to renew the initial guardianship order, the Tribunal made no mention of the views of the subject person. The Appeal Panel found that there was no legal error because there was no material before the Tribunal about the views of the subject person, and the family members’ opinions of the subject person’s views have limited probative force ([44]-[47]).
(ii) The Appeal Panel rejected the appellant’s contention that the Tribunal failed to consider the practicability of health services being provided to the subject person without the need for the making of a guardianship order. The Tribunal found that a guardianship order was needed because it would be impracticable for health care decisions to be made informally without an appointed guardian. It also acknowledged that in the subject person’s case, decisions about consent to medical treatment cannot be separated from decisions relating to end-of-life considerations [63]. The Tribunal was not satisfied that the appellant would communicate with the siblings and seek their views about health care decisions, referring to his “strong and fixed views about protecting the subject person and sustaining her life”. ([64]-[66]). The contention that the Tribunal did not take into account the appellant’s views was also rejected ([67]-[69]).
(iii) The decision not to appoint the appellant and to appoint the subject person was not affected by legal error. The Tribunal’s Reasons demonstrated that the Tribunal considered but ultimately rejected the appellant’s submission that he was able to exercise the functions conferred by the renewed guardianship order in a manner which observed the s 4 principles ([92]). The Reasons make apparent that the Tribunal based its ultimate finding that it was not satisfied that the appellant satisfied the criterion in s 17(1)(c) of the Guardianship Act on the palliative care and family relationships findings ([100]).
(iv) Leave to appeal was refused as there was no evidence that might warrant granting leave to appeal. The Tribunal’s decision to exercise its discretion to make a guardianship order and the subsequent finding that the appellant was not suitable to be appointed as guardian, were not against the weight of evidence, and the Tribunal’s reasoning did not produce an unfair result ([106]). | ZVR v NSW Trustee and Guardian [2022] NSWCATAP 349 Armstrong J, President, A Suthers, Principal Member – 9 November 2022
In sum: The appellant brought an appeal to NCAT against the decision of the Mental Health Review Tribunal (MHRT), under NCAT’s external appeal jurisdiction (s 31 of the NSW Civil and Administrative Tribunal Act 2013 (NSW)) (NCAT Act). The Appeal Panel exercised the discretion to dispense with a hearing and determined the appeal on the papers: s 50 of the NCAT Act.
In July 2021, the MHRT made a financial management order committing the management of the appellant’s estate to the NSW Trustee and Guardian. The first appeal of that decision was brought by the appellant’s sister, ZVQ. It was dismissed by a differently constituted Appeal Panel because ZVQ lacked standing to bring an appeal in her own right as she was not a party to the proceedings before the MHRT (ZVQ v ZVR [2022] NSWCATAP 33). The Appeal Panel determined that it had jurisdiction to hear the present appeal which was brought in the name of ZVR by ZVQ as her sister’s appointed guardian with a legal services function. It was alleged that the appellant was denied procedural fairness because ZVQ was not notified of the hearing before the MHRT.
The Appeal Panel found that the appellant was denied procedural fairness in respect of the failure to notify ZVQ as per the requirements in s 78 of the Mental Health Act 2007 (NSW) (MH Act). Section 78(1)(h) provides that ‘an authorised medical officer must take all reasonably practicable steps to notify any designated carer and the principal care provider…if the patient or person has any matter before the MHRT’. As the guardian for ZVR, ZVQ is deemed to be a designated carer under s 71 of the MH Act. The South Eastern Sydney Local Health District who had made the application to the MHRT, conceded its failure to comply with the requirements of the MH Act.
The Appeal Panel found that whilst the obligation to comply with s 78 rested with the South Eastern Sydney Local Health District and not the MHRT, the MHRT had failed to enquire whether notice of the financial management application had been given to other relevant parties, especially in circumstances where there was limited material provided to the Tribunal in respect of the application ([31]-[32]). The Appeal Panel stated that even if there is no formal right of persons involved in a patient’s care to appear and be heard at the MHRT hearing, they could still potentially assist the patient with the provision of information, or assistance facilitating legal representation ([34]). Finding that the failure to afford procedural fairness may have deprived ZVR of the possibility of a different outcome, the Appeal Panel decided to set aside the decision of the MHRT. | Supreme Court of New South Wales | EB v GB (No 2) [2022] NSWSC 1011 Robb J – 27 July 2022
In sum: The Supreme Court held that an appointment of enduring guardianship (EGA) and an enduring power of attorney (EPOA) does not automatically vest in an enduring guardian or attorney, the authority to decide who may have personal access to the principal.
Facts: The principal (the father) is 98 years old with Advanced Alzheimer’s disease and resides in an aged care facility. He executed an EGA and EPOA appointing the mother as the enduring guardian and attorney. There was conflict within the family, arising primarily from the daughter commencing legal proceedings against her father and other family members in relation to a number of companies controlled by the family. The mother had expressed that she does not wish for her daughter to visit the father due to concerns that this would put his health at risk. The mother had previously allowed the daughter to speak to the father over a Zoom call but refused to permit an in-person visit. The daughter sought an order from the Court directing the mother to provide to the aged care provider, written consent, permitting her to visit her father at the aged care home, subject to conditions.
The Court considered whether it had the power under its parens patriae jurisdiction to make an order that the meeting between daughter and father should take place in person and if so whether that order should be made. Relevant to this question was whether the mother had in fact, been vested with an authority under the EGA or EPOA to prohibit persons from having personal access to the father.
Issues and outcome: (i) Sections 6E and 6F of the Guardianship Act 1987 (NSW) explain the functions of enduring guardians. The EGA gives authority to the mother to exercise the functions set out in s 6E(1)(a)-(e) of that Act. This includes deciding the place where the appointer is to live, what health care and personal services the appointer is to receive, consent to medical or dental treatment, and any other function specified in the instrument ([88]-[89]).
(ii) In NSW, the Guardianship Act is silent as to whether an EGA grants the function of association and visitation. The effect is that it is up to the appointer to decide whether to include an authority which permits the appointee to control access to the appointer. Such authority can be made under s 6E(1)(e) of the Act ([97]). The authority to decide where a person lives does not naturally extend to who has access to that person at the place of residence ([102]). As the father did not include in the EGA an authority to determine who could have access to him, that authority could only be vested in the mother or some other suitable person by an order made by the Tribunal under s 16 of the Guardianship Act ([84](6), [112]).
(iii) The preamble to the EPOA executed by the father expressly prohibits the attorney from making “decisions about [the father’s] lifestyle or health” ([14]). The Court cannot construe the EPOA as vesting authority in the mother when the authority is expressly excluded by its wording ([106]). In any event, at common law, a principal may not confer upon an attorney the authority to determine personal matters, such as who may have access to the principal or the terms upon which access may be had ([107]-[111]).
(iv) The aged care provider has general property rights which includes the right to decide who is permitted to enter the aged care home. An order by the Court would be futile as it cannot on this application require the aged care provider (who is not a party to the proceedings) to facilitate the daughter’s access to the father ([78]-[79]). The decision as to whether the daughter should be given access in person to the father is a matter to be decided by the aged care provider under the Resident Agreement and any provisions of the general law that may be applicable ([113]).
(v) The Court examined the nature of its parens patriae jurisdiction, stating that the jurisdiction can be exercised “even if the only real consequence of the order is to preserve the person’s right to dignity in death” (see [115]-[122]).The Court found that if the EGA had vested in the mother the authority to regulate access to the father, the Court’s parens patriate jurisdiction empowered the Court to make an order to revoke that authority on appropriate conditions concerning the circumstances in which the daughter would be permitted to make personal visits to her father in the aged care home. The order would have been made in the father’s interest in having an opportunity to spend time with his daughter before he dies [(123]). The Court also acknowledged that it is within the Court’s power to make an appropriate order against the aged care provider, but that is not an issue that should be considered in the absence of the aged care provider ([137]). | HBSY Pty Ltd v Lewis [2022] NSWSC 841 Kunc J – 24 June 2022
In sum: The Supreme Court held that an equitable breach of trust is enough to satisfy the meaning of “fraud or fraudulent breach of trust” under the Bankruptcy Act 1966 (Cth). Relying on the equitable principles, the Court also found that a defaulting trustee who is also a beneficiary to an estate cannot claim their interest in the estate until the breach is remedied. Whilst the focus of this case is on the application of equitable principles, the subject matter is relevant to NCAT’s Guardianship Division in the context of cases involving financial abuse, especially concerning older persons.
Facts: The late Marjorie Lewis died in 2008, leaving a will. Her Estate fell into residue and there were five residual beneficiaries under the will, including her sons, Anthony and Geoffrey, and her brother, Allan. Anthony and Allan were also named as executors of the will. On the day of Marjorie’s death, Anthony contacted the Sir Moses Montefiore Jewish Home (Montefiore) representing himself as the executor, and obtained the deposit held by them for his mother’s residency (the Montefiore sum). He deposited the Montefiore sum into his own company, Lewis Securities, of which he is a shareholder and director. Anthony and Allan then renounced their executorship, despite never being granted probate of the will. Shortly after, Geoffrey was granted letters of administration of the will. In 2009, Lewis Securities went into liquidation and Anthony was declared bankrupt. Anthony’s trustee in bankruptcy entered into an asset sale agreement with HBSY. The assets sold by that agreement included Anthony’s interest in Marjorie’s estate. Thereafter, HBSY became the assignee of Anthony’s residuary share of the Estate. In 2012, Anthony was discharged from bankruptcy. In these proceedings, the Court considered whether Anthony was released from his debt upon discharge from bankruptcy, and whether HBSY could recover Anthony’s interest in the Estate.
Issues and outcome: (i) An ‘intermeddler’ is a person who is named as an executor in a will and deals with or ‘intermeddles’ in the estate, without first having taken out probate ([38]). An intermeddler has the same liabilities in respect of the assets as an ordinary executor and is liable for any losses arising from a breach of trust. The Court was satisfied that Anthony was acting as an intermeddler in his conduct with the Estate when he obtained the Montefiore Sum because he took these actions as an executor without obtaining probate for the management of the Estate. Anthony knew he was named executor in the will and explicitly represented himself to Montefiore and the bank as an executor, and by his own admission, understood himself to be acting in that capacity. ([126]-[128]).
(ii) All losses that flow from a trustee’s breach are recoverable ([44]). The Court found that HSBY is unable to claim Anthony’s beneficial interest in the Estate until repayment of the debt, relying on the equitable principles in Cherry v Boultbee (1839) 4 Myl & CR 442; 41 ER 171, Re Dacre; Whitaker v Dacre [1916] 1 Ch 344 and Morris v Livie (1842) 2 WE 934. See [47]-[59]. The effect of these principles on Anthony’s estate are summarised by the Court as follows [141]:
(1) Under Re Dacre, Anthony is taken to have been paid his entitlement at the time he breached his obligation as trustee. When HSBY purchased Anthony’s interest, there was nothing left in Anthony’s entitlement for HSBY to claim because he had already received it in the misappropriated funds. (2) Under Morris v Livie, Anthony’s interest in the Estate was extinguished at the time he breached his obligation. When HBSY purchased Anthony’s interest, it had already ceased to exist. The interest can only be reinvigorated by curing the default by repayment. (3) Under Cherry v Boultee, Anthony is taken to already be in receipt of his share. HSBY is unable to claim the interest until it is released by repayment of the debt in full.
(iii) Section 153 of the Bankruptcy Act 1966 (Cth) provides that upon the discharge of bankruptcy, the bankrupt is released from all debts provable in the bankruptcy. However, the discharge does not release the bankrupt from debts incurred by means of fraud or a fraudulent breach of trust (s. 153(2)(b)). Whilst there is no clear interpretation of the meaning of “fraudulent” in the term “fraudulent breach of trust”, the UK and Australian authorities are at least consistent in their position that “fraud” does not include conduct that is innocent or inadvertent ([171]). The Court followed the proposition in Maxwell v Chittick [1994] NSWCA 196 that fraud in the equitable sense i.e. not requiring the defendant to have an actual intention to defraud the plaintiff, will meet the description “fraud or a fraudulent breach of trust” for the purposes of s 153(2)(b)([156]). This is distinguishable from common law fraud, which requires actual dishonest intent ([88]).
(iv) Fraudulent breaches of trust will include deceit which can be ascertained from the objective circumstances ([162]). Proof of the defendant’s state of mind is irrelevant. Anthony asserted that at the time the investment of the Montefiore sum was made he did not think Lewis Securities was at risk of insolvency, and that the will allowed the funds of the Estate to be invested ([166]). However, the Court only needs to be satisfied that Anthony was in a position of trust, that he breached that trust, and that the breach was not innocent or inadvertent ([178]). As an executor, Anthony was in a position of trust. That he breached that trust is evident by the clear conflict of interest in using the money that was not his for his own personal benefit by depositing it with his own company and failing to inform his co-executor of what he was doing ([178]).
(v) Having established that the debt was incurred by fraud, the effect of s 153(3)(b) of the Bankruptcy Act is that Anthony’s debt to the Estate was not extinguished upon his discharge from bankruptcy ([179]). As the debt is still owing, it attracts the intervention of the equitable principles and as a result, HSBY cannot receive any funds from the Estate until the breach is made good ([180]). | Secretary, NSW Department of Communities and Justice and Anor v ZYM and Anor [2022] NSWSC 935 Lindsay J – 12 July 2022
The following case summary is reproduced, with revisions, from the NCAT Legal Bulletin Issue 4 of 2022.
In sum: The Supreme Court exercised its powers to authorise the remuneration of a private financial manager, following a referral under s 25L of the Guardianship Act 1987 from the NCAT Appeal Panel.
Facts: NCAT at first instance, made guardianship and financial management orders in respect of ZYM. ZYM had been under the parental responsibility of the Minister from the age of 2 years old, following a motor vehicle accident which left him severely disabled. The plaintiff (Secretary), as his tutor, was awarded compensation of $12 million from proceedings in the District Court, which could not be bestowed upon ZYM before he reached 18 years of age. At the time of the hearing in NCAT, there was insufficient evidence to warrant the appointment of a private manager and the NSW Trustee was appointed, with the expectation that a suitably qualified private manager could be appointed in future. The Secretary appealed the decision of NCAT at first instance to the Appeal Panel, which then referred the matter to the Supreme Court, to challenge the identity of the appointed financial manager and to seek to appoint a private financial manager. NCAT’s financial management order was subsequently stayed pending the determination of the referral.
Held: (i) With consent of the parties and the Court, NCAT’s Appeal Panel made an order under s 25L of the Guardianship Act to the effect that the proceedings before it be dismissed on the basis that ZYM’s capability to manage his own affairs should be referred to the Court. The Court noted that this order aimed to facilitate “early settlement” of the appointment of the financial manager, to enable ZYM’s care arrangements to be confirmed without further delay. ZYM was subsequently declared to be “incapable” of managing his own financial affairs by reason of his disability, per s 41(1)(a) NSW Trustee and Guardianship Act 2009 (NSW) (at [7], [8], [26]).
(ii) Upon attaining majority, ZYM acquired an entitlement to a substantial sum of money, which could not be finally assessed until firm arrangements for a financial management regime had been resolved. But prior to this, and before NCAT at first instance, ZYM’s only financial asset consisted of his disability pension. Due to the need for ZYM’s care arrangements to be confirmed prior to him turning 18, the Secretary commenced the NCAT application with a sense of urgency and without the necessary evidence to appoint a private financial manager who was an unlicensed Trustee Company. Therefore, the appointment of the NSW Trustee by NCAT was the “correct” decision at the time and the hesitancy to appoint the private manager was appropriate (at [21], [23]).
(iii) At the time of the Supreme Court proceedings, ZYM had attained majority, a financial manager had been appointed, he had received the full entitlement to his compensation and the necessary evidence to appoint the private financial manager was available. With the subsequent evidence concerning the private financial manager, the Court exercised its powers to make decisions concerning the management of ZYM’s estate. The private manager was appointed as the joint financial manager of the protected estate, with remuneration to be paid subject to the NSW Trustee’s authorisation to assume management of ZYM’s financial affairs (powers which NCAT does not possess) (at [25], [26]).
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